Citation Nr: 0302079
Decision Date: 02/03/03 Archive Date: 02/19/03
DOCKET NO. 93-00 276 ) DATE
)
)
Received from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana
THE ISSUES
1. Whether a timely substantive appeal was filed with
respect to a March 1998 decision that denied a claim of
entitlement to compensation under 38 U.S.C.A. § 1151 for
residuals of transurethral resection of the prostate (TURP),
including loss of use of a creative organ.
2. Whether an evaluation higher than 30 percent is warranted
for peptic ulcer disease with chronic gastrointestinal
disorder, from January 29, 1991 to January 24, 1999.
3. Whether an evaluation higher than 60 percent is warranted
for peptic ulcer disease with chronic gastrointestinal
disorder from January 24, 1999.
(The underlying issue of entitlement to compensation under
38 U.S.C.A. § 1151 for residuals of TURP, including loss of
use of a creative organ, will be the subject of a later
decision by the Board of Veterans' Appeals (Board).)
REPRESENTATION
Appellant represented by: Fred J. Fleming, Attorney at
Law
ATTORNEY FOR THE BOARD
Michelle S. Miyake, Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
May 1970.
In a June 1995 decision, the Board of Veterans' Appeals
(Board), among other things, granted a claim of entitlement
to service connection for peptic ulcer disease. The decision
was effectuated by the RO's rating decision in
September 1995, at which time the RO characterized the
veteran's service-connected disability as "peptic ulcer
disease, chronic gastrointestinal disorder" and assigned a
10 percent evaluation from January 29, 1991. In June 1996,
the RO increased the evaluation for peptic ulcer disease with
chronic gastrointestinal disorder from 10 to 20 percent, from
January 29, 1991. An appeal followed these rating actions,
and in January 1998, the Board remanded the case to clarify a
matter regarding representation of the veteran before VA. In
January 1999, the Board, among other things, denied a claim
of entitlement to a higher rating for peptic ulcer disease
with chronic gastrointestinal disorder. Thereafter, the
veteran filed an appeal to the United States Court of Appeals
for Veterans Claims (Court). In July 2000, the veteran's
representative and VA General Counsel filed a joint motion to
vacate, in part, the Board's January 1999 decision. In
August 2000, the Court granted the joint motion and vacated
that part of the Board's decision that denied a higher rating
for peptic ulcer disease with chronic gastrointestinal
disorder, and remanded the case to the Board for further
action. Thereafter, in August 2001, the Board remanded the
case for additional development.
Subsequently, by rating action of August 2002, the RO
increased the rating for service-connected peptic ulcer
disease with chronic gastrointestinal disorder from 20 to 30
percent, from January 29, 1991, and from 30 to 60 percent,
from January 24, 1999.
The Board notes that the Court has held that an appeal from
an original award does not raise the question of entitlement
to an increased rating, but instead is an appeal of an
original rating. Fenderson v. West, 12 Vet. App. 119 (1999).
Consequently, the Board has characterized the rating issue on
appeal as a claim for a higher evaluation of an original
award. (As noted above, the rating for the service-connected
peptic ulcer disease was increased during the pendency of
this appeal, which resulted in a "staged" rating: 30
percent from January 29, 1991, and 60 percent from January
24, 1999. Fenderson, supra. Therefore, consideration of the
peptic ulcer and gastrointestinal disorder claim must now
include consideration of whether an evaluation higher than 30
percent is warranted from January 29, 1991 to January 24,
1999, and whether an evaluation higher than 60 percent is
warranted from January 24, 1999. Id.)
This matter also comes before the Board on appeal from a
March 1998 rating decision which denied the veteran's claim
of entitlement to compensation under 38 U.S.C.A. § 1151 for
residuals of TURP, including loss of use of a creative organ.
A notice of disagreement was received in July 1998 and a
statement of the case (SOC) was later issued on this question
in November 1999. In October 2000, the RO responded to an
inquiry on this issue by telling the veteran that the appeal
had been closed because he had failed to respond to the
statement of the case. In November 2000, the veteran
expressed disagreement with this finding. The Board noted
the veteran's disagreement in its August 2001 remand. The
issue of timeliness of appeal was consequently remanded so
that the RO could prepare a SOC. Manlincon v. West, 12
Vet. App. 238 (1999); 38 C.F.R. § 19.34 (2000) (whether a
substantive appeal has been filed on time is an appealable
issue). In November 2001, the RO issued a SOC on the
timeliness issue and the veteran filed a timely substantive
appeal within 60 days.
Given the Board's decision below that the veteran's
substantive appeal with respect to the 38 U.S.C.A. § 1151
claim was timely filed, further adjudicative action on the
38 U.S.C.A. § 1151 claim is necessary. The Board is
undertaking additional development on this issue pursuant to
authority granted by 38 C.F.R. § 19.9(a)(2) (2002). When the
additional evidentiary development is completed, the Board
will provide notice of the development as required by Rule of
Practice 903. 38 C.F.R. § 20.903 (2002). After giving the
notice and reviewing any response from the veteran, the Board
will prepare a separate decision addressing this issue.
FINDINGS OF FACT
1. By a March 1998 rating decision, the RO denied the
veteran's claim of entitlement to compensation under
38 U.S.C.A. § 1151 for residuals of TURP, including loss of
use of a creative organ.
2. Notice of the March 1998 decision was mailed to the
veteran on March 13, 1998.
3. The veteran submitted a NOD with the denial of the
38 U.S.C.A. § 1151 claim on July 13, 1998.
4. A SOC on this 38 U.S.C.A. § 1151 question was issued on
November 24, 1999.
5. A timely substantive appeal setting forth allegations of
error of fact or law as to the claim for compensation under
38 U.S.C.A. § 1151 for residuals of TURP, including loss of
use of a creative organ, was received at the RO on December
14, 1999.
6. The veteran's service-connected peptic ulcer disease with
chronic gastrointestinal disorder, from January 29, 1991 to
January 24, 1999, was manifested by no more than moderate
symptoms, and there is no impairment of health manifested by
anemia, or recurrent incapacitating episodes averaging ten
days or more in duration at least four or more times a year.
7. The veteran's service-connected peptic ulcer disease with
chronic gastrointestinal disorder, from January 24, 1999, is
manifested by no more than severe symptoms.
8. The evidence in this case does not show marked
interference with employment or frequent periods of
hospitalization due to the veteran's service-connected peptic
ulcer disease with chronic gastrointestinal disorder so as to
render impractical the application of the regular schedular
standards.
CONCLUSIONS OF LAW
1. The substantive appeal with respect to the March 1998 RO
decision that denied a claim of entitlement to compensation
under 38 U.S.C.A. § 1151 for residuals of TURP, including
loss of use of a creative organ was timely filed.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202,
20.302(b) (2002).
2. An evaluation higher than 30 percent for peptic ulcer
disease with chronic gastrointestinal disorder, from January
29, 1991 to January 24, 1999, is not warranted. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.20,
4.27, 4.114 (Diagnostic Codes 7305, 7319) (2002).
3. An evaluation higher than 60 percent for peptic ulcer
disease with chronic gastrointestinal disorder from January
24, 1999, is not warranted. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.20, 4.27, 4.114
(Diagnostic Code 7305) (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Timeliness of Substantive Appeal
The law provides that ". . . questions as to timeliness or
adequacy of response shall be determined by the Board of
Veterans' Appeals." 38 U.S.C.A. § 7105(d)(3) (West 1991).
The initial question that must be resolved is whether the
Board has jurisdiction to consider the claim for compensation
under 38 U.S.C.A. § 1151 for residuals of TURP, including
loss of use of a creative organ, which was addressed in a
March 1998 rating decision.
An appeal to the Board consists of a timely filed NOD in
writing and, after a SOC has been furnished, a timely filed
substantive appeal. 38 C.F.R. § 20.200 (emphasis added).
The substantive appeal can be set forth on a VA Form 9
(Appeal to the Board of Veterans' Appeals) or on
correspondence specifically identifying the issues appealed
and setting out specific arguments relating to errors of fact
or law made by the agency of original jurisdiction (AOJ).
38 C.F.R. § 20.202. To be considered timely, the substantive
appeal must be filed within 60 days from the date that the
AOJ mails the SOC to the appellant or within the remainder of
the one-year period from the date of mailing of the
notification of the determination being appealed. 38 C.F.R.
§ 20.302(b). Additionally, an extension for filing a
substantive appeal may be granted on motion filed prior to
the expiration of the time limit described above. 38 C.F.R.
§ 20.303. If the claimant fails to file a substantive appeal
in a timely manner, and fails to timely request an extension
of time, "he is statutorily barred from appealing the RO
decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993); cf.
Rowell v. Principi, 4 Vet. App. 9 (1993).
There are situations where, when additional pertinent
evidence is received during the time allowed for perfecting
an appeal, VA must afford the veteran at least 60 days from
the mailing date of a supplemental statement of the case
(SSOC) to perfect an appeal, even if the additional 60-day
period would extend the expiration of the original appeal
period. VAOPGCPREC 9-97 (Feb. 11, 1997).
Even if a VA Form 9 is submitted, it must be "properly
completed." 38 C.F.R. § 20.202. As noted above, it
"should set out specific arguments relating to errors of
fact or law made by the agency of original jurisdiction in
reaching the determination, or determinations, being
appealed." Id; see also 38 U.S.C.A. § 7105(d)(3) (West
1991). When the substantive appeal fails to allege specific
error of fact or law, the Board may dismiss the appeal.
38 U.S.C.A. § 7105(d)(5) (West 1991).
In the veteran's case, a March 1998 decision of the RO denied
a claim of entitlement to compensation under 38 U.S.C.A.
§ 1151 for residuals of TURP, including loss of use of a
creative organ. Notice of this decision was sent to the
veteran on March 13, 1998. Thereafter, the veteran filed a
NOD on July 13, 1998. A SOC was issued on November 24, 1999.
The record now shows that the RO received a written statement
from the veteran indicating his desire to appeal the
38 U.S.C.A. § 1151 claim on December 14, 1999. In this
regard, the Board finds that a timely substantive appeal
setting forth allegations of error of fact or law was
submitted following the November 1999 SOC. See 38 C.F.R.
§ 20.202 (2002) (a substantive appeal must set forth specific
allegation of error of fact or law). It is interesting that
the handwritten appeal submitted by the veteran does not
appear in the claims file until after the Board's August 2001
remand. Whether it was misplaced for a time or filed in a
temporary file while the veteran's claims files were at the
Board for consideration of the issue remanded by the Court
cannot be determined. Nevertheless, the salient point to be
made is that was clearly date-stamped as having been received
at the RO on December 14, 1999, within 60 days of the
November 1999 SOC.
Accordingly, because the veteran filed a timely substantive
appeal, he is allowed to appeal the March 1998 decision that
denied his claim for compensation under 38 U.S.C.A. § 1151
for residuals of TURP, including loss of use of a creative
organ. The Board now has jurisdiction to consider an appeal
from this decision. 38 C.F.R. § 20.200; Roy, supra. (As
noted in the introduction to this decision, further
evidentiary development on the underlying question will be
undertaken by the Board before a decision is reached.)
Peptic Ulcer Disease
Initially, the Board notes that disability evaluations are
determined by the application of a schedule of ratings, which
is in turn based on the average impairment of earning
capacity caused by a given disability. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1 (2002). Each service-connected disability is
rated on the basis of specific criteria identified by
Diagnostic Codes. 38 C.F.R. § 4.27 (2002). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2002). Reasonable doubt regarding the
degree of disability will be resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2002). In addition, when an
unlisted condition is encountered, it is permissible to rate
it under a closely related disease or injury in which not
only the function affected, but also the anatomical location
and symptomatology are closely analogous. 38 C.F.R. § 4.20
(2002).
Furthermore, in cases where the original rating assigned is
appealed, consideration must be given to whether the veteran
deserves a higher rating at any point during the pendency of
the claim. Fenderson, supra.
Under the provisions of Diagnostic Code 7305, a 20 percent
rating is warranted when a duodenal ulcer is moderately
disabling--recurring episodes of severe symptoms two or three
times a year averaging 10 days in duration; or with
continuous moderate manifestations. 38 C.F.R. § 4.114
(Diagnostic Code 7305) (2002). A 40 percent rating is
warranted when symptoms are moderately severe--less than
severe but with impairment of health manifested by anemia and
weight loss; or recurrent incapacitating episodes averaging
10 days or more in duration at least 4 or more times a year.
Id. A 60 percent rating is warranted when the condition is
severe--pain only partially relieved by standard ulcer
therapy, periodic vomiting, recurrent hematemesis or melena,
with manifestations of anemia and weight loss productive of
definite impairment of health. Id.
A severe irritable colon syndrome disorder, with diarrhea, or
alternating diarrhea and constipation, with more or less
constant abdominal distress, warrants a 30 percent
evaluation. 38 C.F.R. § 4.114 (Diagnostic Code 7319) (2002).
This is the maximum rating assigned under this Code.
The Board also notes that ratings for disorders of the
digestive system under Diagnostic Codes 7301 to 7329,
inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not
be combined with each other. A single evaluation will be
assigned under the diagnostic code that reflects the
predominant disability picture, with elevation to the next
higher evaluation where the severity of the overall
disability warrants such elevation. 38 C.F.R. § 4.114
(2002).
The Board further notes that, effective July 2, 2001, the
provisions of 38 C.F.R. § 4.112, concerning weight loss,
which are applicable to the instant claim, were changed.
While the veteran has not previously been provided the
amended language of that regulation, the Board finds that
there would be no prejudice to the veteran in proceeding with
a decision in the instant appeal. The amended regulation
establishes a definition of "weight loss" by reference to a
baseline weight calculated by determining a veteran's average
weight for the two-year period prior to the onset of the
disability at issue. Nevertheless, as discussed below, even
with a qualification of minor weight loss under the amended
regulation, the amendments to 38 C.F.R. § 4.112 are not
favorable to the veteran's claim under the facts of his
particular case, and there consequently is no prejudice to
the veteran in proceeding with the case on the merits.
In this regard, the Board notes that minor weight loss or
greater losses of weight for periods of brief duration are
not considered of importance in rating. Rather, weight loss
becomes of importance where there is appreciable loss which
is sustained over a period of time. In evaluating weight
loss generally, consideration will be given not only to
standard age, height, and weight tables, but also to the
particular individual's predominant weight pattern as
reflected by the records. The use of the term "inability to
gain weight'" indicates that there has been a significant
weight loss with inability to regain it despite appropriate
therapy. 38 C.F.R. § 4.112 (2000).
As indicated above, effective July 2, 2001, the provisions of
38 C.F.R. § 4.112 were revised. See 66 Fed. Reg. 29,486 -
29,489 (2001). On and after that date, 38 C.F.R. § 4.112
reads as follows:
For purposes of evaluating conditions in
§ 4.114, the term "substantial weight
loss" means a loss of greater than 20
percent of the individual's baseline
weight, sustained for three months or
longer; and the term "minor weight
loss" means a weight loss of 10 to 20
percent of the individual's baseline
weight, sustained for three months or
longer. The term "inability to gain
weight" means that there has been
substantial weight loss with inability to
regain it despite appropriate therapy.
"Baseline weight" means the average
weight for the two-year-period preceding
onset of the disease.
66 Fed. Reg. 29,488.
In Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), it was
held that "where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to appellant should and we so hold will apply
unless Congress provided otherwise or permitted (VA) to do
otherwise and the Secretary did so."
Peptic Ulcer Disease from January 29, 1991 to
January 24, 1999
A review of the record indicates that a September 1991 VA
upper gastrointestinal series (UGI) revealed hypertrophy of
the rugal folds of certain areas of the stomach, a very
questionable ulcer in the base of the duodenal bulb, and a
normal small bowel examination. A VA esophageal
gastroduodenoscopy (EGD) in December 1991, revealed similar
results, including a small duodenal ulcer. The diagnoses
included an irritable spastic colon, constipation, recurrent
peptic ulcer disease, and/or irritable bowel syndrome.
At a VA gastrointestinal examination in January 1994, the
veteran complained of daily mid-abdominal pain, frequent
nausea, and gas temporarily relieved by medication. The
examiner reported that an April 1993 gastroscopic examination
showed a superficial, non-bleeding, small ulcer in the
prepyloric area, and scarring of the pylorus, along with a
small pseudodiverticulum. The veteran reported that he had
had no vomiting for over two years, had no history of
hematemesis, and that he had had blood in his bowel movement
once in 1990.
On examination, the veteran weighed 125 pounds; his best
weight in the previous year was 125 pounds; and his best
weight in the previous four years was 130 pounds. The
veteran was not anemic and his abdominal examination was
normal. Additionally, the examiner reported that the veteran
did not have a cyclic problem - he claimed to have pain on a
daily basis for a few hours. The examiner opined that the
veteran had a long history of recurring duodenal ulcers, with
a normal physical examination at present. It was the
examiner's impression that the veteran's symptoms did not
reflect an active ulcer, but were compatible with residual
scarring, a pseudodiverticulum, and to some extent a
psychophysiologic gastrointestinal tract reaction. A January
1994 gastrointestinal series revealed gastric reflux and a
roughened duodenal cap suggestive of duodenitis.
In an August 1994 addendum to the January 1994 VA
gastrointestinal examination, the gastroenterologist
summarized the veteran's pertinent clinical history, and
clinical and laboratory examination findings. He reported
that he had reviewed the record on appeal, and gave an
opinion that the veteran's gastric reflux and duodenitis were
not related to any of the complaints during service.
A March 1994 VA EGD impression was that there was a deformity
of the duodenal bulb, duodenitis, and gastritis. The
February 1995 EGD revealed diffuse gastritis with antrum
deformity and hypertrophic gastric folds. The April 1995 EGD
impression was that there was a hypertrophic gastric fold.
Additionally, a February 1995 stomach biopsy revealed chronic
inflammation consistent with Helicobacter (H.) pylori
gastritis.
Six friends of the veteran filed statements with the RO in
October 1994. These statements reported, in substance,
complaints about the quality of treatment the veteran
received from VA. They also include observations that the
veteran experienced, on occasion, abdominal pain (they saw
him bending over in pain). They also reported that the
veteran's stomach disorder caused him to vomit occasionally,
lose weight, and have decreased energy. They also included
opinions that the veteran's stomach pain completely
incapacitated him on occasion and greatly impaired his
ability to work.
At a May 1996 VA intestine examination, the veteran
complained of daily abdominal pain in the lower abdomen,
nausea, and periodic vomiting, but no hematemesis. He then
reported that he had difficulty maintaining his weight -
normal weight was between 128-130 pounds but he had gone down
to as low as 112 pounds.
On examination, the veteran weighed 122.6 pounds, his maximum
weight in the past year was 122 pounds, and the abdomen was
normal except for tenderness. Additionally, there was no
clinical evidence of anemia or malnutrition. Moreover, it
was reported that the veteran had alternating constipation
with watery stools attributable to irritable syndrome. It
was also reported that the veteran had a history of nausea.
The diagnosis was Helicobacter pylori gastritis, duodenitis,
duodenal ulcer, by history.
At a May 1996 VA rectum and anus examination, the veteran
reported a history of hemorrhoids. The veteran also reported
some urgency to defecate, and previous incontinence, three
times a month. On examination, it was reported that the
veteran had a history of bleeding not requiring transfusions
because of hemorrhoids. It was also reported that he only
soiled his clothing when unable to get to a bathroom. It was
also reported that the veteran was not tenesmus, dehydrated,
anemic, or malnourished. It was then reported that the
veteran had "[i]ncontinence, diarrhea - alternating normal
and diarrheal stools." The diagnoses were history of
recurrent hemorrhoids and irritable syndrome.
When seen by VA on January 24, 1999, the assessments were
history of peptic ulcer disease, TURP with subsequent
impotence, and probable depression.
The record includes an April 2002 opinion from the veteran's
private treating physician in which the physician checked
boxes reflecting that the veteran's severe irritable bowel,
chronic gastritis, and chronic duodenitis most closely
approximate the criteria as follows: a 60 percent rating
under Diagnostic Code 7305, a 10 percent rating under
Diagnostic Code 7307, and a 30 percent rating under
Diagnostic Code 7319. The physician noted that since 2000,
the veteran had reported severe epigastric cramping
accompanied by diaphoresis, nausea, and fecal incontinence
occurring within 30-60 minutes of consuming his meals.
When examined by VA in April 2002, the veteran weighed 125
pounds. The examiner noted that, in January 2002, the
veteran had a fourth attempt for eradication of H. pylori.
He did not complain of any melena or hematemesis but the
examiner saw submucosal hemorrhages on the January 2002
endoscopy. The examiner indicated that multiple biopsies
documented progressive increase of fibrosis and non-
eradication of H. pylori, and that the veteran suffers from
severe dyspepsia, which was most likely related to H. pylori
infection.
As already noted, veteran's service-connected peptic ulcer
disease with chronic gastrointestinal disorder has been
evaluated as 30 percent disabling under 38 C.F.R. § 4.114
(Diagnostic Code 7319) (2002) from January 29, 1991, to
January 24, 1999. Initially, the Board notes that the
provisions of 38 C.F.R. § 4.114 (Diagnostic Code 7319) (2002)
provide a maximum rating of 30 percent when irritable colon
syndrome is severe, with diarrhea, or alternating diarrhea
and constipation, with more or less constant abdominal
distress. Consequently, an evaluation higher than 30 percent
is not available to the veteran under this code.
Turning to the provisions of Diagnostic Code 7305, the Board
notes that the record includes the veteran's complaints of
nausea, abdominal pain, constipation and/or diarrhea,
incontinence, vomiting, and weight loss. The veteran also
claims that his symptoms occur daily and are only temporarily
relieved by medication. Additionally, the record on appeal
contains observations by the veteran's friends that he had
problems with abdominal pain, vomiting, and weight.
Moreover, the record on appeal also shows that the veteran
had abdominal tenderness. However, the objective medical
evidence contained in the record on appeal fails to show
that, during the time in question, the veteran experienced
anemia, weight loss, or recurrent incapacitating episodes
averaging 10 days or more in duration at least 4 or more
times a year.
Despite the veteran's claims of weight loss, his weight
remained fairly constant since 1972--in the 120's. In other
words, the record in this case demonstrates that the veteran
had not suffered, and does not currently suffer, any
appreciable weight loss attributable to a gastrointestinal
disorder. See February 1972 VA examination report--the
veteran weighed 128 pounds; a November 1980 record from Dr.
Johnson reported that there was no evidence of the veteran
having lost weight; January 1994 VA examination report--the
veteran weighed 125 pounds; and May 1996 VA examination
report--the veteran weighed 122.6 pounds. Additionally,
although a VA treatment record indicated that there was blood
in the veteran's stool and the veteran reported a history of
anemia, no anemia was found at his most recent VA
examination. See January 1995 and June 1996 VA treatment
records; March 1996 VA examination report. Moreover, the May
1996 VA examiner reported that the veteran's history of blood
in his stool was due to his non service-connected
hemorrhoids. Most recently, the veteran weighed 125 pounds
when examined in April 2002.
It should also be noted that the veteran's symptomatology did
not include recurrent hematemesis or melena. Lastly, the
Board notes that despite the veteran's and his friends'
statements that the gastrointestinal disorder caused the
veteran pain such as to totally incapacitate him on occasion,
the record on appeal is devoid of medical evidence that the
veteran had incapacitating episodes averaging 10 days or more
in duration, at least 4 or more times a year. Therefore, the
Board finds that the veteran's symptoms were not, prior to
January 1999, of the degree contemplated by the criteria for
a 40 percent evaluation under Diagnostic Code 7305.
The Board has also considered whether the veteran is entitled
to a higher rating under any other of the code sections used
to rate gastrointestinal difficulties such as the veteran's.
Under Diagnostic Code 7307, a 60 percent rating is warranted
when a veteran has chronic gastritis with severe hemorrhages,
or large ulcerated or eroded areas. Since the veteran did
not have such symptoms during the time in question, a higher
evaluation under this Code is not warranted.
The Board, in reaching the conclusion above, has considered
the veteran's arguments as set forth in his written
statements to the RO as well as his representative's
statements, coupled with lay statements of record, regarding
the severity of his peptic ulcer disease with chronic
gastrointestinal disorder. While a lay witness can testify
as to the visible symptoms or manifestations of a disease or
disability, his or her belief as to its current severity
under pertinent rating criteria or the nature of the service-
connected pathology is not probative evidence because only
someone qualified by knowledge, training, expertise, skill,
or education, which the veteran is not shown to possess, may
provide evidence requiring medical knowledge. Layno v.
Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown,
5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
Given the record as described above, the Board finds that
there is no basis for awarding an evaluation higher than 30
percent from January 29, 1991 to January 24, 1999. See
Fenderson, supra.
Peptic Ulcer Disease from January 24, 1999
The veteran's service-connected peptic ulcer disease with
chronic gastrointestinal disorder has been evaluated as
60 percent disabling under 38 C.F.R. § 4.114 (Diagnostic Code
7319) (2002) from January 1999. Despite the veteran's
contentions to the contrary, there is no basis to award the
veteran a higher evaluation based on the current evidence of
record. A 60 percent rating is the maximum rating assignable
under Diagnostic Code 7305 and there is no indication that
the veteran has been service-connected for a gastrojejunal
ulcer, ulcerative colitis, or other digestive tract problem
for which a higher schedular rating may be assigned.
38 C.F.R. § 4.114.
The Board, in reaching the conclusion above, has considered
the veteran's arguments as set forth in his written
statements to the RO as well as his representative's
statements regarding the severity of the peptic ulcer disease
with chronic gastrointestinal disability. While a lay
witness can testify as to the visible symptoms or
manifestations of a disease or disability, his or her belief
as to its current severity under pertinent rating criteria or
the nature of the service-connected pathology is not
probative evidence because only someone qualified by
knowledge, training, expertise, skill, or education, which
the veteran is not shown to possess, may provide evidence
requiring medical knowledge. Layno, 6 Vet. App. at 470;
Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at
494-95.
Given the record as described above, the Board finds that
there is no basis for awarding an evaluation higher than 60
percent from January 24, 1999. See Fenderson, supra.
In view of the above, the Board has considered whether the
veteran is entitled to a rating for service-connected
gastrointestinal disability on account of considerations
outside the schedular rating criteria. The Board, however,
finds that the evidence does not tend to show that the
service-connected disability presents such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards, so as to
warrant the assignment of an extraschedular evaluation under
38 C.F.R. § 3.321(b) (2002). See Bagwell v. Brown, 9 Vet.
App. 337, 339 (1996). The current evidence of record does
not demonstrate that the service-connected disability
resulted in frequent periods of hospitalization or in marked
interference with employment. 38 C.F.R. § 3.321. It bears
emphasis that the schedular rating criteria are designed to
take problems such as experienced by the veteran into
account. The schedule is intended to compensate for average
impairments in earning capacity resulting from
service-connected disability in civil occupations.
38 U.S.C.A. § 1155. "Generally, the degrees of disability
specified [in the rating schedule] are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." 38 C.F.R. § 4.1 (2002).
In the veteran's case, there is no indication that service-
connected gastrointestinal disability problems are so
unusually debilitating as to warrant a referral of his case
for an extraschedular evaluation under § 3.321(b). As noted
above, there is no evidence that the nature and severity of
these symptoms are beyond what is already contemplated by the
applicable criteria. It is not shown by the evidence that
the appellant has required frequent hospitalization for his
gastrointestinal disability, or that there has been any
significant or regular outpatient treatment for this
disability. In view of these findings and in the absence of
evidence of extraordinary symptoms, the Board concludes that
the schedular criteria adequately contemplates the severity
of the veteran's service-connected gastrointestinal
disability. Therefore, the Board concludes that a remand to
the RO for referral of the issue to the VA Central Office for
consideration of an extraschedular evaluation is not
warranted.
In adjudicating the veteran's claims, the Board has
considered the applicability of the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(VCAA) (codified as amended at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)), which
became effective during the pendency of this appeal. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA - November 9, 2000 -
or filed before the date of enactment and not yet final as of
that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2002); cf. Dyment v. Principi, 287
F.3d. 1377 (Fed. Cir. 2002) (holding that only section 4 of
the VCAA, amending 38 U.S.C. § 5107, was intended to have
retroactive effect).
The Board has also considered the final regulations that VA
issued to implement these statutory changes. See Duty to
Assist, 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and
3.326(a)). These regulations, likewise, apply to any claim
for benefits received by VA on or after November 9, 2000, as
well as to any claim filed before that date but not decided
by the VA as of that date, with the exception of the
amendments to 38 C.F.R. § 3.156(a) relating to the definition
of new and material evidence and to 38 C.F.R. § 3.159
pertaining to VA assistance in the case of claims to reopen
previously denied final claims (the second sentence of §
3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to
reopen a finally decided claim received on or after August
29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). A
discussion of the pertinent VCAA and regulatory provisions
follows.
The VCAA, among other things, modified VA's duties to notify
and to assist claimants by amending 38 U.S.C.A. § 5103
("Notice to claimants of required information and
evidence") and adding 38 U.S.C.A. § 5103A ("Duty to assist
claimants"). First, the VCAA imposed obligations on the
agency when adjudicating veterans' claims. With respect to
the duty to notify, VA must inform the claimant of
information "that is necessary to substantiate the claim"
for benefits (codified as amended at 38 U.S.C.A. § 5103).
Second, 38 U.S.C.A. § 5103A sets out in detail the agency's
"duty to assist" a claimant in the development of claims
for VA benefits. The new § 5103A provides in part that the
Secretary shall make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate the
claimant's claim for VA benefits. 38 U.S.C.A. § 5103A(a)(1)
(West Supp. 2002).
In this case, VA's duties have been fulfilled. The required
notice must inform the applicant of any information necessary
to complete the application. The purpose of the first notice
is to advise the claimant of any information, or any medical
or lay evidence not previously provided to the Secretary that
is necessary to substantiate the claim. In this case, the
veteran's application is complete. There is no outstanding
information required, such as proof of service, type of
benefit sought, or status of the veteran, to complete the
application.
VA must also provide certain notices when in receipt of a
complete or substantially complete application. 38 U.S.C.A.
§ 5103(a) (West Supp. 2002). The amended "duty to notify"
requires the Secretary to notify a claimant of which portion
of the information and evidence, if any, is to be provided by
the claimant and which portion, if any, will be obtained by
the Secretary on behalf of the claimant. 38 U.S.C.A.
§ 5103(a) (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630
(2001) (to be codified as amended at 38 C.F.R. § 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In those
cases where notice is provided to the claimant, a second
notice is to be provided to advise that if such information
or evidence is not received within one year from the date of
such notification, no benefit may be paid or furnished by
reason of the claimant's application. 38 U.S.C.A. § 5103(b)
(West Supp. 2002). In addition, 38 C.F.R. § 3.159(b), 66
Fed. Reg. 45,630, details the procedures by which VA will
carry out its duty to provide notice.
In this case, VA informed the veteran of which information
and evidence he was to provide and which information and
evidence VA would attempt to obtain on his behalf. In
reviewing the amended § 5103(a), the Board finds that VA has
complied with the notice requirements contained in § 5103(a).
From the outset, the RO has informed the veteran of the bases
on which the RO decided the claims and of the elements
necessary to be granted the benefits sought. This is
evidenced by the rating actions of September 1995 and August
2002; and statements of the case issued in October 1995 and
October 2002, which informed him of the applicable law and
regulations. The record also reflects that the veteran has
been advised as to the law and regulation changes which
occurred during the pendency of his appeal by a remand from
the Board in August 2001.
The Board also notes that the VCAA's duty-to-assist provision
under 38 U.S.C.A. § 5103A has been fulfilled. The VCAA sets
forth several duties for VA in those cases where there is
outstanding evidence to be obtained and reviewed in
association with a claim for benefits. VA must make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate the claim for the benefit
sought, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West Supp. 2002); 66 Fed. Reg.
45,620, 45,630-31 (Aug. 29, 2001) (to be codified as amended
at 38 C.F.R. § 3.159(c), (d)). In this case, a VA
examination was conducted and VA records were obtained. The
veteran has not indicated that additional records exist that
would have an effect on the Board's analysis.
Given that VA has satisfied its duties to notify and to
assist the veteran in this case, a remand for further action
under the VCAA will serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the appellant); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands that would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the appellant are to be avoided).
Under these circumstances, further development of these
claims and further expending of VA's resources are not
warranted.
ORDER
A substantive appeal with respect to the March 1998 RO
decision that denied a claim of entitlement to compensation
under 38 U.S.C.A. § 1151 for residuals of TURP, including
loss of use of a creative organ was timely filed; to this
extent, the appeal is granted.
An evaluation higher than 30 percent from January 29, 1991 to
January 24, 1999, for peptic ulcer disease with chronic
gastrointestinal disorder is denied.
An evaluation higher than 60 percent from January 24, 1999,
for peptic ulcer disease with chronic gastrointestinal
disorder is denied.
MARK F. HALSEY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile,
please note these important corrections to the advice in the
form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.